3. ESTIMATING THE IMPACT ON MINORITY
ENROLLMENT OF A NATIONWIDE BAN ON RACIAL PREFERENCE IN COLLEGE ADMISSIONS
(1998)

5.SHOULD COLLEGES BE DISCOURAGED FROM USING STANDARDIZED TESTS WHEN
THEY HAVE A DISPARATE IMPACT ON RACIAL OR ETHNIC GROUPS? (1999)

6.
ADDING UP THE HARM FROM RACIAL PREFERENCE IN COLLEGE ADMISSIONS (1999)

7.
A SEED OF TRUTH IN A POD OF FALSITY: THE UNIVERSITY OF VIRGINIA'S PRESIDENT
DEFENDS RACIAL PREFERENCE (1999)

8.
SHUTTING DOWN AND STRIKING OUT:WILLIAM & MARY'S PRESIDENT ANSWERS THE
CRITICS OF AFFIRMATIVE ACTION (2003)

1.
BACKWARD AND DOWNWARD IN THE PURSUIT OF CIVIL RIGHTS:OPPONENTS OF CALIFORNIA'S
BAN OF RACIAL PREFERENCECALL
IT DISCRIMINATORY (December 1996)

Have
they no shame? Opponents of California's Proposition 209 are trying to have nondiscrimination
declared unconstitutional. I am not making this up. What they wish to outlaw is
not racial and sexual discrimination, but its prohibition. They hope to obtain
such a declaration at the highest judicial level, and have already been encouraged
at the lowest.

Prop.
209 is an amendment to the constitution of California, adopted last month by ballot.
It bans discrimination or preference, based on race, sex or ethnicity, by agencies
of the state. Its opponents want a ruling from the Supreme Court that such provisions
in state constitutions violate the Constitution of the United States.

Who
are these opponents? They include the American Civil Liberties Union, the National
Association for the Advancement of Colored People and the National Organization
of Women. A generation ago these organizations were sworn enemies of racial and
sexual discrimination. They were leaders in the successful movement to adopt antidiscrimination
laws in every state. Today they want the U.S. constitution to forbid principles
that only yesterday they gloried to uphold.

Why
the reversal? Because, we are told, a ban on discrimination and preferential treatment
would outlaw affirmative action. This formulation is new. For decades the supporters
of affirmative action had pretended that it was simply a means of "opening doors"
and "assuring equal opportunity": that no discrimination was involved. But the
fight against 209 changed all that. The amendment's opponents acknowledged that
almost all the state's affirmative action programs for minorities and women require
unequal treatment, based on race, ethnicity or sex. These would be swept away
by a ban on discrimination and preference.

They
lost the vote and now they claim that 209 is unconstitutional. Why? They allege
that the amendment "treats the unfinished business of rooting out discrimination"
as if it were no concern of government. That it would "block legislation needed
to protect minorities and women from discrimination." That it would prevent the
state from fulfilling its constitutional duty "to redress past discrimination
against minorities."

But
these allegations are clearly false. The amendment leaves the state free to act
against discrimination by command, punishment, compensation, precept and example.
One means alone is barred: government may not combat discrimination by discriminating.

After all, we
do not authorize the state to rob people in order to root out theft, to defraud
the public in order to counteract taxpayer fraud, to embezzle the funds of embezzlers
and in general to combat unlawful conduct by perpetrating it. When government
makes a rule of doing wrong to correct wrong, it destroys its ability to inculcate
what is right.

The
plaintiffs have not completely silenced the inner voice telling them that there
is something wrong with discrimination based on race or sex, no matter whom it
favors. Hence their unblushing Orwellian rhetoric: they insist that to forbid
discrimination is really to discriminate. They ask us to believe that, by eliminating
programs that benefit minorities and women, the amendment "is clearly discriminatory
in its present and future impact..." "It embodies the very sort of invidious race
and sex discrimination that the Equal Protection Clause was designed to prevent..."

These are depths
to which the historical opponents of antidiscrimination laws had not the sophistry
to descend. The Civil Rights Act of 1964, which barred racial discrimination in
private employment, public accommodations, and all programs receiving federal
aid, was debated in the Senate for many months. In all those words the opposition
never asked anyone to believe that, by eliminating practices that benefitted white
people, the bill was at heart discriminatory.

In
the 1950s the civil rights movement sought to persuade America that racial discrimination
was morally wrong and constitutionally invalid. In the 1970s the feminist movement
sought a constitutional amendment that would clearly ban sexual discrimination.
In the 1990s a very different banner is now unfurled. [return
to table of contents]

2. THE SUIT AGAINST CALIFORNIA'S PREFERENCE BAN
RELIES ON AN INTERPRETATION OF THE U.S. CONSTITUTION THAT THE SUPREME COURT
SHOULD OVERRULE ( July 1997)

The
lawsuit strikes many as preposterous, but the plaintiffs have already won the
first round. Is it possible that the law is on their side?

The
suit is the effort by opponents of California's Proposition 209 to have it declared
unconstitutional. Adopted by ballot last November, Prop. 209 would amend the state
constitution to ban preferential treatment based on race, ethnicity or gender
in public employment, education and contracting. This amendment, according to
the plaintiffs, would violate the Equal Protection Clause of the Fourteenth Amendment
to the United States Constitution.

The
Equal Protection Clause has long been interpreted to forbid unequal treatment,
by the states, based on race or sex. It is the sword by which state-sponsored
racial segregation was struck down. To claim now that this clause makes it unlawful
for the states to forbid unequal treatment by their own agencies seems bizarre.

Nevertheless,
a federal district court has granted a preliminary injunction against enforcement
of 209, on the grounds that the lawsuit will probably succeed. The judge and the
plaintiffs place great reliance on two Supreme Court cases, Hunter v. Erickson
(1968) and Washington v. Seattle School District (1982). In these decisions
the Equal Protection Clause acquired a new interpretation, of which most people
are blissfully unaware, and which is quite unfriendly to the California amendment.

In
Hunter the city council of Akron, Ohio, had passed a Fair Housing ordinance,
banning discrimination based on race, ethnicity or religion. Whereupon the voters,
by ballot initiative, amended the city charter to provide that any law regulating
the sale or rental of housing on these bases must be approved by both the city
council and a popular referendum. This amendment was declared unconstitutional,
as violating the Clause.

In
Seattle the city school board had adopted a racial integration plan, which
required the extensive use of mandatory busing. In response a state law was enacted
by ballot, providing that no student could be required to attend any school that
was not the nearest, or next nearest, to his home. Exceptions were permitted for
some purposes, but not for racial integration. This law met the same fate as the
Akron amendment.

The
Supreme Court reached these decisions by means of a new definition of "racial
classification," a central term in the interpretation of the Equal Protection
Clause. When a law is held to be a racial classification, it is ordinarily struck
down as unconstitutional. The new definition was not meant to replace the older
one, but to supplement it by adding a second meaning.

By
the original definition, a law is a "racial classification" if it treats people
differently, based on their race or ethnicity.

Under
the supplemental definition a law, even though neutral in its language, becomes
a "racial classification" if it meets three criteria: (1) the law deals with racial
matters, (2) it transfers decisions on those matters to a different level of government
and (3) the transfer makes it harder for racial minorities to secure favorable
legislation. The rationale is that such a law treats racial minorities differently
to their disadvantage by placing obstacles in their way that other groups do not
have to face.

What
happens when these criteria are applied to Proposition 209? All three are satisfied.
By prohibiting racial preference at the constitutional level, 209 deals with racial
matters and transfers decisions concerning them from local and state government
to the state constitution. It thus makes it harder for racial minorities than
for non-racial groups to secure preferential laws based on group membership.

If
the definition of "racial classification" constructed in Hunter and Seattle
is valid, then 209 is a racial classification. But can this definition withstand
reasonable examination?

Whenever
the courts add to the meaning of an important term a second definition that differs
materially from the first, a risk is incurred. The risk is that the second definition,
or one of its necessary implications, will turn out to contradict the first definition.
The law will then be at war with itself, prohibiting with one definition what
is permitted with the other. When this happens one definition must be scrapped
or both revised.

The
present case demonstrates that the second definition of "racial classification"
contradicts the first. By the first definition Proposition 209 is not a racial
classification and is thus presumably constitutional; by the second definition
it is a racial classification and thus presumably unconstitutional.

But
the California amendment is not the only instance that exposes the problem. Any
state constitutional provision, any state law, any federal statute or regulation
that bans unequal treatment based on race, collides with this new definition.
Each of these (1) deals with racial matters, (2) transfers decisions on them to
a level of government that is different from and less accessible than local government,
and (3) by this transfer makes it harder for racial minorities than for others
to secure preferential treatment for their group.

Can
the Court, when creating the second definition, have meant to render unconstitutional
all state and federal laws that forbid unequal treatment based on race? Surely
not. The new doctrine was launched in Hunter and confirmed in Seattle with no
analysis by the Court of its possible impact on state and federal laws that forbid
all racial discrimination. In the circumstances of these two cases the supplemental
definition seemed to promote nondiscrimination, not forbid it.

But
in the California case we discover that the new definition, though occasionally
an ally of racial nondiscrimination, is at heart its enemy. Consequences that
previous courts did not foresee, and cannot have intended, are now upon us.

What
is preposterous is not the present lawsuit, or the lower court's initial ruling
in its favor, but the judicial doctrine that invited them. It renders constitutionally
suspect all state and federal laws that ban unequal treatment based on race or
ethnicity. The doctrine should be scrapped, as a 'smart' bomb fabricated for noble
purposes, but without due consideration of the target onto which it would inevitably
fasten. [return to table of contents]

3.
ESTIMATING THE IMPACT ON MINORITY ENROLLMENT OF A NATIONWIDE BAN ON RACIAL
PREFERENCE IN COLLEGE ADMISSIONS (January 1998)

It
is now the law in California, Texas, Louisiana and Mississippi that public colleges
and universities may not grant preference based on race or ethnicity in student
admissions.

If
this prohibition became nationwide, applying to private as well as public institutions,
how would it affect minority enrollment? Would it "resegregate the academy," as
supporters of affirmative action have charged?

To
answer these questions would be easier, if colleges had revealed the percentage
of applicants they have been admitting via racial preference. Nevertheless, with
some arithmetic and a little patience we can deduce the impact of a preference
ban from information that is in the public domain.

The
College Entrance Examination Board provides extensive data on the million-plus
students who take the SATs each year. The number covered, about two-thirds of
college-bound youths, are more than enough to serve as a representative sample
of the national applicant pool. The data include the distribution of both test
scores and high school grades by race. From this we can calculate the percentage
of admittees who would be minorities, if selection were based on scores and grades
without racial preference. Such calculations cannot tell us exactly what would
happen, but they provide a reasonable estimate.

The
chief beneficiaries of racial or ethnic preference in undergraduate admissions
have been blacks, Hispanics and American Indians (BHI). In the 1997 report by
the College Board, 207,000 test-takers (over 18%) identified themselves as members
of one of these groups, including 110,000 (almost 10%) as blacks. What proportion
of the entering class would these groups occupy, in schools of various levels
of difficulty, if racial preference were abandoned?

We
can divide colleges and universities into three groups, based on whether they
appeal primarily to students in the upper 35%, the next 50% or the bottom 15%
of the applicant pool. If schools in the first group counted only grades, they
would admit applicants whose high-school average was A- or better, 12.5% of whom
in 1997 were B, H or I. If they counted only test scores, they would take students
who were above 550 in the verbal and/or the math section of the SAT, about 8%
BHI. Since most schools weigh both grades and scores, on average the BHI proportion
of the applicants who qualify for admission will be at a midpoint, say 10.5%.
The same kind of calculation puts the average black proportion at about 4%.

Schools
in the second tier cater to the next 50% of the pool. This means grade averages
from B- to B+ or test scores between 400 and 550. Some 21.5% of the students with
these grades, and about 20% of the students with these scores, were BHI. Second-tier
colleges that count both grades and scores will admit say 21% BHI. For B alone
the comparable percentage is about 11.

Virtually
all the students in the bottom 15% have grade averages from C- to C+, and test
scores from 250-400. If this segment is defined by grades, the BHI percentage
is 31.5; if by scores, slightly over 38; if by both, say 35. For blacks the estimate
is about 22%.

Selective
schools rely primarily, but not exclusively, on grades and scores. In addition,
they consider various indicators of achievement (honors courses taken, extracurricular
activities, athletic prowess) and disadvantage (family poverty, inferior schools).
Some indicators disproportionately favor BHI; some not. It is a reasonable guess
that their net impact, impartially employed, would raise the real BHI percentage
somewhat above my estimates, which are based solely on grades and scores.

Schools
could choose to manipulate admissions requirements in order to maximize BHI enrollment,
increasing the weight of considerations that favor BHI and decreasing the weight
of considerations that do not. Such policies would raise BHI admissions in selective
colleges substantially above those I have calculated. But this would constitute
preference based on race. It is a settled principle that policies, though neutral
on their face, are racially preferential if adopted in order to favor a racial
group.

Supposing,
however, that a preference ban were conscientiously obeyed, would it mean the
end of racial integration in our colleges and universities? Obviously not. Third-tier
schools, with 35% BHI, would have plenty of room for whites and Asians (WA). At
the second tier the BHI percentage (21) would not be much different from their
proportion of all testees. First-tier schools, though predominantly WA, would
still have an average of 10.5% who were black, Hispanic or American Indian, even
if they used only grades and scores.

As
one climbs toward the colleges of highest rank, the BHI proportion does become
smaller. Schools that confined themselves to the top 20-25% of applicants (grades
A to A+; scores above 600) could still expect 9% BHI, including 3.5% B. But schools
(are there any?) that admitted only the top 5 or 6% (grades A+, scores above 700)
would be down to 7% BHI, 2.5% B.

A
national ban on racial preference in undergraduate admissions would not end, or
even reduce, the overall racial integration of our colleges and universities.
In the most selective schools the racial balance would shift, but minority students
lost at this level would be gained by other schools a little further down. And
white and Asian applicants would secure what their black, Hispanic and American
Indian fellow-students already enjoy: the right not to be discriminated
against on account of race. [return to table of contents]

Participants
in President's Clinton's National Dialogue on Race are finding that worthwhile
discussion of racial issues is hard.

One
obstacle is that people differ in how they define crucial terms, and they are
usually unaware of the difference. If you and I, without knowing it, use the same
word to mean quite different things, we literally do not know what we are talking
about.

I.
RACIAL DISCRIMINATION

For
example, how do people define racial discrimination? Presumably, as discrimination
based on race or ethnicity. But what is meant by discrimination? A difference
in treatment. Any difference in treatment, or only one that seems unjust?

Some
people define discrimination as simply a difference in treatment. This definition
has one part: a fact. Other people mean by discrimination a difference in treatment
they disapprove of. This definition has two parts: a fact and a condemnation.

The
two-part definition is quite popular. Ask yourself whether you ever call a difference
in treatment discrimination, if you think it's okay. For example - travel discounts
for the elderly, separate athletic competition for men and women, scholarships
for the needy. All of these are differences in treatment, based on age, sex or
wealth. But chances are that you would not label them discrimination, unless you
disapproved.

Unfortunately,
the two-part definition has unexpected, paradoxical consequences. It turns the
proud declaration, "We are against racial discrimination!", into an empty statement,
"We are against every race-based difference in treatment that we are against."
It allowed upholders of racial segregation to claim that their policies did not
discriminate. It allows supporters of affirmative action to claim that their policies
do not discriminate. Both groups approve of the difference in treatment required
by their policies; therefore, they do not label it discrimination, if they are
using the two-part definition.

Moreover,
this definition derails any attempt to discuss the rights and wrongs of racial
discrimination. People cannot debate the morality of something they have predefined
as wrong.

We
are rescued from these problems by the one-part definition, that discrimination
is simply a difference in treatment. To call an action discrimination in this
sense only states a fact; whether the action is unjust remains to be determined.
So this definition restores meaning to discussions and declarations concerning
the morality of racial discrimination.

For
the National Dialogue on Race to deal effectively with the rights and wrongs of
different treatment based on race, the one-part definition of discrimination should
be adopted, and its popular rival set aside. If that proves impossible, it will
be better to omit the word discrimination entirely, and to address the issue directly
as difference in treatment.

II.
EQUAL OPPORTUNITY

Do
people have a right to equal opportunity in higher education and employment regardless
of their race? Most Americans would say, Yes. But the consensus is not as solid
as it appears, because this right is defined in two different ways that flatly
contradict each other. One task of a National Dialogue on Race is to uncover and
clarify this contradiction. Here are the two definitions.

Definition
#1. Equal opportunity regardless of race means that when you apply to attend
a college or get a job, your race doesn't count for you or against you. An equal
opportunity means an equal chance. Equal opportunity regardless of race means
that your chances of being selected or rejected, promoted or fired, paid well
or badly, are not increased or decreased by your racial identity.

Your
race doesn't matter. No one treats you differently, to your advantage or your
disadvantage, because of your race. The idea that race makes a difference, that
it should influence whether you are selected, is in direct conflict with this
definition.

Definition
#2. Equal opportunity regardless of race means that minority individuals,
through affirmative action, are given the same chance of success they would have
if they had been born white. Underlying this definition is the belief that blacks,
Hispanics and American Indians are more likely than other Americans to have suffered
racial discrimination, attended inferior schools or grown up in homes that were
economically, educationally or culturally impoverished.

In
this view, your race does matter. The disadvantages that cling to your racial
identity must be counteracted by programs that treat you differently, to your
advantage. Equal opportunity regardless of race means that the disadvantages tied
to race are offset by advantages based on race.

Clearly,
these two definitions are incompatible. Colleges and professional schools, public
and private employers, cannot bestow advantage on the basis of race (as required
by the second definition), if they disregard race (as required by the first definition).

Under
the label, "equal opportunity regardless of race," lie contradictory
ideas. Because we were using the same words, we made the ancient mistake of assuming
that we spoke of the same things. By acknowledging the contradiction, we destroy
an illusion of national consensus. But we gain thereby a better grasp of the issues
that need to be argued in a National Dialogue on Race.

III.
AFFIRMATIVE ACTION

Affirmative
Action is one of the hardest issues to address for President Clinton's National
Dialogue on Race. A major part of the difficulty is the public disagreement as
to whether affirmative action is basically preferential treatment. Opponents charge
that it is; supporters refuse to admit that the charge is justified.

How
can people reasonably consider whether affirmative action is a good idea, if their
notions of what it is contradict each other? Fortunately, the contradiction is
more apparent than real.

A
typical college affirmative action program for racial minorities (usually blacks,
Hispanics and Native Americans) includes lower standards of admission, extra financial
aid, and special tutoring. These benefits, based on race, are over and above what
is available to all students, based on individual merit or need.

The
defenders of affirmative action do not publicly concede that it amounts to preferential
treatment, but their arguments point to that conclusion. They argue that if preferences
for athletes, veterans and alumni children are acceptable, so are affirmative
programs for racial minorities. Although they deny that under these programs unqualified
candidates are preferred, they do not deny that the less qualified are often preferred
over the more qualified.

But
the strongest evidence that they view affirmative action as preferential treatment
is the position they take concerning efforts to prohibit such treatment. The supporters
of affirmative action fight very hard against any ballot initiative, legislative
action or judicial decision that forbids racial preference. They contend that
to ban preferential treatment based on race means the end of affirmative action
based on race. This contention says it all. It demonstrates that the supporters
of affirmative action actually agree with its opponents, that it is indeed preferential
treatment.

The
motive for obscuring the nature of affirmative action is powerful. Its proponents
fear that what they firmly hold to be right would, if its preferential character
were clear, be rejected by white Americans. But if their cause has a claim on
justice, let it be argued on its merits. Only thus can a worthwhile national dialogue
on race proceed. [return to table of contents]

5. SHOULD COLLEGES BE DISCOURAGED FROM USING
STANDARDIZED TESTS WHEN THEY HAVE A DISPARATE IMPACT ON RACIAL OR ETHNIC GROUPS?
(Comment posted online 12/27/99 in a Chronicle of Higher Education Colloquyof
the same title, reprinted with permission.)

Bill
Goggin (7/7/99) begins his 10-point contribution with an important question: Do
tests like the SAT measure (a) innate ability, (b) aptitude for learning, or (c)
acquired skills and knowledge? He chooses (c), not (a) or (b). I say, all of the
above.

Mr. Goggin
fails to see past the content of the SAT. To be sure, its questions test skills
and knowledge, such as reading comprehension and vocabulary. But the skills and
knowledge attained by age 17 are the result of a dozen years of reading, studying,
calculating, writing and abstract thinking. The greater oneís aptitude for these
activities, the more knowledge and skill will be gained by performing them. Thus
aptitude for learning is measured by a good test of the knowledge and skills that
have been learned. Moreover, a person with greater innate capacity for these activities
is more likely to develop a greater aptitude for them. Thus the test measures
(c) directly, and (b) and (a) through (c).

Next,
Mr. Goggin asks whether performance on such tests is "affected by a studentís
social and economic background, life experiences, and previous academic preparation."
His answer is yes, which is true as far as it goes. But he overlooks genes, a
major contributor. People enter the world with different kinds and degrees of
talent. Their underlying potential for verbal and mathematical learning and reasoning
varies enormously. Although the genetic contribution to the racial gaps in test
scores is uncertain, psychometricians agree that genes are a primary cause of
the tremendous individual variance within races.

Roger
Clegg and Lenore Ostrowsky, in their background piece, assert that standardized
tests are "the single most reliable predictor of academic success." On the contrary,
Bob Schaeffer (7/1/99) maintains that "high school record has the strongest correlation
with first year college grades." No one in the colloquy thus far has provided
authority for either view.

I checked the website of the College Board (http://www.collegeboard.com/),
the outfit responsible for the SAT. It states that high school grades are the
best single predictor of college grades, with an average correlation of .54 on
a scale of 0 to 1. The SAT is a close second: the correlation between oneís combined
verbal and math scores and college GPA is .52.

Notice
that the Board does not confine the predictive power of SAT scores to first year
college grades. Nor do William Bowen and Derek Bok in The Shape of the River,
their acclaimed study of admissions policies in 28 selective colleges. They found
that SAT scores were strong predictors of grades throughout a studentís undergraduate
career, and also of the probability of earning a graduate degree.

Mr.
Schaeffer also writes that "no single factor" explains "much more than a quarter
of the total variance" in college grades. This statement is roughly confirmed
by the College Board's figures. The degree of explanation of the variance is quantified
by squaring the correlation. If the correlation = .54, the correlation squared
= .29 or 29%. Thus, high school grades explain 29% of the variance in college
grades. A correlation of .54 or .52 is clearly no guarantee. Many students with
higher (lower) grades in high school will get lower (higher) grades in college.
And the same goes for test scores. Moreover, you canít double your predictive
power by using both grades and scores, since they are already largely correlated
with each other. According to the Board, if you combine the two, their correlation
with college grades is .61. This is very powerful, as predictors go in social
science, but it still explains only 37% of the variance.

Thus,
colleges have excellent reasons for considering both grades and scores, and excellent
reasons for looking at additional indicators of student promise.

Mary
Fritz (7/6/99) writes that standardized admissions tests "are known to be culturally
biased." She cites no authority for this, nor have any of her successors in the
colloquy. By biased, presumably she means that the cultural content of the questions
favors whites, thereby producing scores that make minorities appear less able
than they are. If she is right, in comparison with white students, the SAT scores
of black students would underpredict how well they do in college. But in fact
the reverse is true. Bowen and Bok, in the study cited above, found that SAT scores
greatly overpredicted black college grades. Blacks averaged the same grades as
whites whose combined SATs were 300 points lower.

Ms.
Fritz also espouses the view that a test is discriminatory when underrepresented
minorities average lower scores than whites. This view confuses two usages of
the term, discrimination. If the members of any group (blacks, Presbyterians,
left-handers, soccer moms, businessmen, adolescents, redheads) score differently
on a test, researchers say that the test discriminates between that group and
others. The test treats that group differently by giving it a different average
score. But the redheads are treated differently by the test because their performance
is different, not because they are redheads.

Treating
people differently because of differences in their performance is not immoral;
on the contrary, it is essential to civilization. When the American people outlawed
racial discrimination as morally wrong (in the Civil Rights Act of 1964 and other
state and federal anti-discrimination legislation), they meant to ban difference
in treatment based on individual differences in race, not difference in treatment
based on individual differences in performance.

The
US Department of Educationís Office of Civil Rights seeks the opposite. It wants
selective colleges to increase the number admitted from certain racial groups
by reducing the use of tests on which these groups do less well. To reach a goal
that discriminates based on race, colleges are pressed to abandon or de-emphasize
tests that discriminate based on performance. [return to table
of contents]

6.ADDING UP THE HARM FROM RACIAL PREFERENCE IN COLLEGE
ADMISSIONS(Comment posted online 12/6/99 in a Chronicle Of Higher Education
Colloquy entitled "Where is the Debate on Affirmative Action in Higher
Education Headed?"Reprinted with permission.)

I
believe that racial preferences in college admissions do great harm, as set forth
below. Would advocates of such preferences, who read this colloquium, be willing
to consider these costs and to say whether they think them unimportant, or important
but outweighed by the benefits of race-based admissions?

1.
The national rule prohibiting racial discrimination has been suspended in an important
area of American life. (By Ďracial discriminationí I mean Ďa difference in treatment
or favor based on race or ethnicity.í) This rule is the best known defense against
the historical tendency of racial or ethnic favoritism to produce racial or ethnic
partisanship, prejudice, hatred, injustice, oppression and war.

2.
The moral authority of this rule in other areas has been undermined. By the
example of our leading colleges and universities, blacks and Hispanics are taught
that discrimination in their behalf is not only permissible, but praiseworthy,
a lesson they increasingly feel free to apply in their own conduct. Forty years
ago those who favored racial preference were called racists; nowadays the people
most likely to be attacked with this label are not the practitioners of racial
preference but its opponents.

3.
Installed first for the admission of students and then for the employment of faculty
and staff, racial preference has invaded course content. In literature, history
and sociology considerations of racial representation and balance influence which
authors are assigned and which people and problems are studied.

4.
When the less able displace the more able, the quality of work necessarily
declines, in the first year of college on up to the top ranks of the professions,
business and government. Human problems and needs require the best hands we can
find, with the best training we can give. Individuals involved in the displacement
also suffer, whether blocked from doing what they can, or propelled into doing
what they cannot.

The
pretense that no substantial discrimination by race or sacrifice of quality occurs
under affirmative action has spawned decades of evasion, equivocation and duplicity
by its academic sponsors. [return to table of contents]

7. A SEED OF TRUTH IN A POD OF FALSITY: THE UNIVERSITY
OF VIRGINIA'S PRESIDENT DEFENDS RACIAL PREFERENCE (October 1999)

Backers of UVa's
racial admissions policy have recently brought their case to the people of Charlottesville
through our City Council. May I, as a resident of the city and a critic of the
policy, return the favor by speaking to the university community via the Cavalier
Daily [the campus newspaper at the University of Virginia]?

Your
contributors have submitted cogent arguments against treating UVa applicants unequally
based on their race. I wish President Casteen had paid more attention to such
objections before writing his public letter of Sept. 30, on "Equal Opportunity
in Admissions."

Although
his letter does not explicitly take sides, it finds only reason to praise and
none to blame the present practice. It would have greater force if it showed some
understanding of the facts and principles that bring many of us to a contrary
view.

Crucial
information about the admissions process has (unwillingly) been released by the
university. The Center for Equal Opportunity, a private agency critical of race-based
affirmative action, tabulated first-year admissions for 1996. The Center found
that the admission rate for black applicants (48%) was almost twice the rate for
whites (25%), a fact that UVa does not dispute.

These
figures strongly suggest racial preference, but are not conclusive, unless one
knows something about the relative qualifications of the thousands who applied.
Based on data for each student, Dr. Robert Lerner, the primary author of the Center
report, was able to calculate the different probabilities of admission for white,
black, Asian and Hispanic applicants with the same grades and test scores.

For
example, the average 1996 applicant stood at the 88th percentile of his/her high-school
class, and scored 1276 on the SAT. The probability of admission for applicants
with these qualifications was: blacks - 89%, Hispanics - 24%, Asians - 17%, and
whites - 16%. Thus, a black with identical grades and scores had more than five
times the chance of admission of a white or Asian applicant.

Is
this 'equal opportunity'? The standard meaning of that term in a racial context,
derived in part from the US Civil Rights Act of 1964, is an equal chance of selection
for equally qualified people, regardless of their racial identity.

Whether
the university's policy is right or wrong, to label it "equal opportunity" is
Orwellian. The reality of unequal opportunity is concealed and misrepresented
by giving it the name of its contrary.

President
Casteen's letter asserts that the courts "have left the universities with no guidance
on what they ought to do, must do or can do." This statement contains a seed of
truth in a pod of falsity. He is right that no one can be sure how the Supreme
Court, under President Clinton or his successor, will apply its understanding
of the Fourteenth Amendment's Equal Protection Clause to the facts at UVa. But
he is wrong to disregard certain principles of constitutional law, which define
this understanding and offer extensive guidance to any admissions office that
cares to listen.

The
Supreme Court has consistently held that racial discrimination by a State or agency
thereof, no matter which persons or groups it favors, is presumably unconstitutional,
as a violation of the Equal Protection Clause. The presumption can be overcome,
but only if the discrimination serves a compelling interest that cannot be advanced
by other means.

The
Casteen letter also states that "the argument about 'using race' adds little to
the discussion." This, from the chief executive of an institution whose use of
race in admissions is not peripheral, trivial or insignificant, but gross! This
is scofflaw language, concerning perhaps the greatest human achievement of the
20th century: the widespread legal and moral prohibition of racial discrimination.

Apparently the
administration and the faculty senate would love to continue UVa's racial admissions
policy, if the courts will let them. But they cannot persuade us that the policy
is just, unless they acknowledge the degree of preference conferred, and refute
the formidable objections raised by their critics.[return
to table of contents]

8.SHUTTING
DOWN AND STRIKING OUT:WILLIAM & MARY'S PRESIDENT ANSWERS THE CRITICSOF
AFFIRMATIVE ACTIONPublished in slightly different versions
Dec. 16, 2003 in the National Association of Scholars Online
ForumJan. 30, 2004 in The Flat Hat, College of William and
Mary campus newspaper

It's
not every night that one receives an email from a college president, especially
an offer to help. I had written President Timothy Sullivan of the College of William
and Mary, concerning his administration's response to a controversial student
protest, as reported
in the campus newspaper.

The "Sons of Liberty," a new, Libertarian, student organization, tried to hold
an "Affirmative Action Bake Sale." It was intended to symbolize racial discrimination
in college admissions, by racial discrimination in the price of cookies. Whites
had to pay $1 for four cookies; Asians, 75c; blacks and Hispanics, 50c; American
Indians, 25c. A representative of the administration told the students they could
sell the cookies, but only if they stopped selling them at different prices based
on race. Their message censored, the students disbanded. Afterwards, they probably
wished they had said something like: if W&M will stop racial discrimination in
admissions, we'd be delighted to stop it in cookie sales; indeed, we'd throw a
party and give them away free! (The zinging retorts always arrive after their
targets have left.)

When
I learned about this, I wrote to President Sullivan at 11 pm, 12 December 2003,
as follows:

Shame
on the College for shutting down a student bake sale protesting affirmative action
programs that discriminate based on race. People who believe that such programs
are good for America should say why. Their reasons for supporting race-based affirmative
action must be pretty feeble, if they respond to opposition by trying to silence
it. [As with the other quotes, this is the complete message.]

His
reply, at 12:45 am, 13 December 2003:

Some
fool has sent me an e-mail and signed your name to it. You should do what you
can to discover the identity of the person. He or she is doing real harm to your
reputation. I will help you if I can.

You
can imagine my surprise! I have never been called a fool in a message pretending
the fool was somebody else. Perhaps my correspondent was responding to a bad week
at the office, rather than to me. So I sent a second message, at 6 pm, 13 December
2003:

I
notice that you wrote in the middle of the night, after perhaps a trying week.
Would you like, in a calmer mood, to revise your email to me?

He replied at 10:42 pm, 13 December 2003:

No.
Tim Sullivan - You can quote me.

What to make of this response? One may argue that it is perfectly consistent:
shut down student criticism of school policy, strike out at a citizen's criticism
of the shutdown. But there is also President Sullivan's offer to help me if he
can.

Let
me take him up on that. It would be a great help to assure the students of the
college he leads that the right of opponents of racial preference to speak out
is just as precious as the right of supporters. And that this right includes not
only the freedom to state opinions and to give reasons, but also to dramatize
crucial facts. There is no more crucial fact about affirmative-action admissions
than the degree of racial discrimination they involve.

In
this regard, President Sullivan could initiate a policy of full disclosure. What
proportion of applicants owe their acceptance to racial or ethnic preference?
How does the chance of admission of white applicants compare with that of Asian,
black, Hispanic or Native Americans with the same academic credentials? The relative
prices in the bake sale were guesses, in some cases apparently quite mistaken.
(Estimates for W&M, as well as other Virginia schools, are online at http://www.ceousa.org/va.html
and http://www.ceousa.org/valaw.html.)

The
administration could replace student guesses or obsever estimates with authoritative
facts. If the College of William and Mary sincerely believes that the racial discrimination
it practices is good for America, it should be willing to disclose -- indeed,
to proclaim -- its extent. [return to table of contents]